SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 133/11
DATE: 20120612
RE: R. v. Andrew Rudd
BEFORE: M.A. Code J.
COUNSEL:
Debra Moskovitz , for the Crown/Appellant
Sandy Di Martino , for the Respondent
HEARD: June 12, 2012
ENDORSEMENT
A. INTRODUCTION
[ 1 ] The Respondent Andrew Rudd (hereinafter Rudd) was found not guilty by Ray J. on July 21, 2011 on counts of impaired driving and “over 80”. The Crown appeals against these two acquittals.
[ 2 ] The only issue raised by the defence at trial was whether there had been a violation of Rudd’s s. 8 Charter rights and whether the resulting evidence should be excluded pursuant to s. 24(2) of the Charter . That evidence was Intoxilyzer readings of 240 and 239 and observations of Rudd at the police station, recorded on video tape, in which, according to Ray J., he “clearly looked impaired, his speech clearly sounded slurred … he wasn’t steady and he was leaning against the wall to hold himself up”.
[ 3 ] The s. 8 issue raised by the defence was a narrow one, namely, whether the arresting officer had reasonable and probable grounds to make an Intoxilyzer breath demand, pursuant to s. 254(3) of the Criminal Code , based on his observations of Rudd at the time of a R.I.D.E. stop and based on the “fail” that Rudd registered on the roadside screening device. The only factual issue raised by the defence, in this regard, was the possibility of recent drinking and residual mouth alcohol and its impact on the officer’s belief in the reliability of the roadside test results. In short, the defence submitted that the arresting officer should have delayed the roadside test for fifteen minutes in order to eliminate any possibility of recent drinking and residual mouth alcohol.
[ 4 ] The trial judge held that there had been a s. 8 violation, she excluded all the resulting evidence pursuant to s. 24(2), and acquitted the accused on both counts. At the conclusion of argument of the Crown appeal I allowed the appeal and ordered a re-trial, with reasons to follow. These are my reasons.
B. FACTS
[ 5 ] I will only briefly set out those facts that are relevant to the narrow s. 8 issue raised by the defence.
[ 6 ] Constable Fasieh Butt had been a police officer for three years. He was participating in a R.I.D.E. spot check on Lakeshore Boulevard East in Toronto, late on the night of June 18, 2010. The relevant portions of his evidence are as follows:
• He stopped Rudd’s car at 11:37 p.m. and the roadside test sample was successfully obtained from Rudd at 11:47 p.m., so there was a ten minute delay between the stop and the test;
• He noted that Rudd had a smell of alcohol on his breath, his speech was slurred, and he slouched against the car and appeared unable to stand up;
• He asked Rudd “if he had consumed any alcoholic beverages recently” and Rudd replied, “I’ve had a few beers. I was at the concert”. Rudd also mentioned the particular concert that he had been attending. His wife was with him in the car;
• Constable Butt was aware of a concert that night at the Air Canada Centre (ACC). He also knew that concerts are held at the Molson Amphitheatre at Ontario Place. The R.I.D.E. stop was located to the east of both of these venues, on Lakeshore Boulevard at Rees Street. Traffic was heavy at that time of night, with people leaving events and with the R.I.D.E. stop blocking two lanes of Lakeshore Boulevard such that “traffic was backed up”. Constable Butt estimated, during examination-in-chief, that to walk to a parked car from a concert and then to travel east to the R.I.D.E. stop that night would have taken a total of about thirty minutes from the ACC and about forty minutes from Ontario Place, if not more;
• In cross-examination, when it was put to him that Rudd was at the Molson Amphitheatre concert that night, Constable Butt reiterated his forty minute estimate to get from the concert to the R.I.D.E. stop. He believed that the distance from that concert venue to the R.I.D.E. stop was “a few kilometers” and he based his time estimate on “the volume of traffic” at a time of night when “people were leaving from clubs and so forth and [with] another concert at ACC”, which was closer to the R.I.D.E. stop;
• Constable Butt was aware of the need to wait fifteen minutes “if there’s any concern that the alcohol would have been consumed within a very short period of time prior to being stopped”;
• Constable Butt agreed, in cross-examination, that he did not ask Rudd how long it had been since he consumed his last drink and he agreed that he sometimes does ask this question and that he may well ask it in future, “given your questioning today”;
• Ray J. confirmed with Constable Butt that there was a ten minute delay, “after the time of driving” until the time that “he took the test”. Constable Butt agreed and added that it would also “have taken him at least that much time period to reach our location.”
[ 7 ] The Respondent Rudd and his common-law wife both testified on the trial and on the Charter s. 8 Motion. Much of their evidence was not communicated to Constable Butt, at the time of the roadside screening test, so it had limited relevance to the s. 8 Motion. In any event, it did not contradict Constable Butt’s evidence on the issue of any recent drinking and residual mouth alcohol in any significant way. Both Rudd and his wife believed that they were at the concert at Ontario Place from 7:30 p.m. until about 11:20 p.m. In other words, on their evidence, they left the concert approximately seventeen minutes before the R.I.D.E. stop and twenty-seven minutes before the roadside screening test. As to the timing of their drinking, they shared two large beers during the evening, drinking the first beer at the start of the concert, purchasing a second beer at the intermission around 9:00 p.m., and finishing that second beer towards the end of the concert. Rudd’s wife estimated that it took approximately seven to ten minutes to walk from the concert to their parked car and then it took another ten minutes or longer to drive to the R.I.D.E. stop.
C. LAW
[ 8 ] Given that s. 254(3) enacts a warrantless power to demand and seize breath samples, the parties agree that the onus was on the Crown on the s. 8 Motion to establish Constable Butt’s “reasonable grounds”. See: R. v. Haas (2005), 200 C.C.C. (3d) 81 (Ont. C.A.).
[ 9 ] To the extent that Constable Butt relied on the roadside screening device “fail”, as part of his “reasonable grounds”, the possibility of recent drinking and the impact of residual mouth alcohol on his belief in the reliability of the roadside test results, meant that a body of well-known case law was engaged. The three leading cases on this point are: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.); R. v. Einarson (2004), 183 C.C.C. (3d) 19 (Ont. C.A.); R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.J.).
[ 10 ] Durno J. summarized the effect of the case law on this point in Mastromartino , supra at para. 23 :
In summary, I take Bernshaw , and Einarson to establish the following:
Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
[ 11 ] I agree with Ms. Moskovitz, counsel for the Crown, that the trial judge made three errors when addressing the s.8 and s. 24(2) issues in this case.
[ 12 ] First, she began her analysis of the s. 8 issue by stating the following:
… it is my view that the officer should have asked more particulars about how recent the drink was …
This position is directly contrary to what Sopinka J. held, speaking for the majority of the Court in Bernshaw , supra at para. 81 :
It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no duty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police . That is not to say that the suspect may not volunteer such information, either spontaneously or in response to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test . [Emphasis added].
[ 13 ] Second, and far more fundamentally, there was simply no basis on the facts of this case to question the reliability of the roadside test results on the basis of recent drinking and residual mouth alcohol. It must be remembered that the statutory duty is to administer the roadside test “forthwith”, pursuant to s. 254(2), and that delay can render the demand unlawful. See: R. v. Woods (2005), 2005 SCC 42 , 197 C.C.C. (3d) 353 (S.C.C.).
[ 14 ] As a result, delay due to concerns about residual mouth alcohol and recent drinking is exceptional and there must be grounds to believe that such delay is necessary. As Durno J. put it in Mastromartino , supra at para. 23 , there must be “credible evidence which causes [the officer] to doubt the accuracy of the test result unless the test was briefly delayed” and the “mere possibility that a driver has consumed alcohol within 15 minutes before taking the test” does not mandate delay. In Bernshaw , supra at para. 80 , Sopinka J. held that there was “no evidence” as to when the accused had his last drink, given that the arresting officer “made no inquiry” and the accused did not volunteer any information on the point. It was simply “unknown” to the officer, as to whether there had been recent drinking, and so it was “too speculative to assert that the screening device result was unreliable”.
[ 15 ] In the case at bar, the record on the s. 8 issue was even weaker than the “mere possibility” scenario or the “no evidence” scenario dealt with in Mastromartino and in Bernshaw . In Rudd’s case, the evidence positively established that he could not have been drinking in the fifteen minutes prior to the roadside test. On Constable Butt’s estimate, he believed there would have been about forty minutes delay between Rudd’s admitted drinking at the concert and the R.I.D.E. stop. At a minimum, there had to be twenty minutes delay, as the trial judge herself clarified when she questioned Constable Butt. The defence evidence confirmed that there was at least twenty minutes delay between the last sip of the last beer and the roadside test. Indeed, the delay was probably longer.
[ 16 ] In these circumstances, the s. 8 Charter Motion bordered on the frivolous. There was simply no basis for the trial judge to find:
I cannot conclude that the officer acted reasonably when he decided to administer the roadside screening device test without delay … just based on what he was told, the circumstances, the context, and what he knew about places in the vicinity that served alcohol where Mr. Rudd could have attended the concert, in these circumstances I don’t believe that I can say that he probably honestly believed that he could rely on the test result … I can’t say that he reasonably believed that he could rely on the test result …
None of the above analysis addressed Constable Butt’s reasonable belief that somewhere between twenty and forty minutes had passed between Rudd’s last drink at the concert and the roadside test. In the circumstances known to him, Constable Butt could not even speculate about recent drinking and residual mouth alcohol. There was no basis for delaying the roadside test, let alone a “credible” case of “necessity”.
[ 17 ] The third and last error is that there was no basis to exclude the evidence pursuant to s. 24(2), even if the trial judge’s s. 8 decision was upheld. She instructed herself, correctly, in accordance with the three lines of inquiry set out in R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.). When applying the first set of Grant factors, she concluded that the breach was “serious” and that the level of state misconduct was “high”. However, she then went on to find, in effect, that Constable Butt had acted in good faith because he “honestly believed that the roadside screening device was going to give him an accurate result”. Furthermore, she stated that the officer made only “one mistake” and that the accused “got off on a technicality”. These various findings are not compatible, in terms of assessing the gravity of the Charter breach. Indeed, the exclusion of breath test results, on the basis of minor or technical Charter breaches, was one of the “anomalous results” which caused the Supreme Court of Canada to change its approach to s. 24(2). See: Grant , supra at para. 106 .
[ 18 ] When applying the second set of Grant factors, the trial judge held that the impact of the breach on the accused’s Charter -protected interests was “very high”. She reasoned that “In these circumstances it generally is high” because the roadside test interferes with liberty and the test results then lead to charges and to further detention [emphasis added]. In my view, this reasoning is contradicted by Grant , supra at paras. 76-78 and 111 , where McLachlin C.J.C. and Charron J. held, on behalf of the majority, that the second set of factors focuses on “the seriousness of the impact of the Charter breach” in the sense of its impact on “the interests engaged by the infringed right”. In the s. 8 context, they held that those interests are “privacy, and more broadly, human dignity” and went on to expressly apply this reasoning in the context of seized breath samples:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive . [Emphasis added].
[ 19 ] The trial judge held that the third set of Grant factors argued in favour of admissibility. She was clearly correct in this regard. See: R. v. Grant , supra at para. 110 .
[ 20 ] Given the above errors in the trial judge’s analysis, her s. 24(2) decision is not entitled to deference. On a fair reading of the evidence, Constable Butt honestly believed the roadside test was reliable, as the trial judge found, and any failure on his part to delay the test for a few more minutes was, at best, a minor breach. This form of search and seizure is “relatively non-intrusive” and the test results are “generally reliable”, as the Court held in Grant , supra at paras. 110 and 111 . In these circumstances, admission of the evidence would not bring the administration of justice into disrepute.
D. CONCLUSION
[ 21 ] In the result, all three of the Crown’s grounds of appeal have merit. The trial judge erred in law, in finding a s. 8 violation, and further erred in excluding the evidence pursuant to s. 24(2).
[ 22 ] The appeal is allowed, the acquittals are set aside, and a new trial is ordered.
M.A. Code J.
Date: June 12, 2012